Citation Nr: 1527179
Decision Date: 06/25/15 Archive Date: 07/07/15
DOCKET NO. 13-33 882 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for bilateral hearing loss disability.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
A. Odya-Weis, Associate Counsel
INTRODUCTION
The Veteran served on active duty from December 1960 to January 1965.
This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA).
The record before the Board consists of the Veteran's paper claims file and electronic records in Virtual VA and the Veterans Benefits System.
FINDING OF FACT
Hearing loss disability was not present in either ear until more than one year following the Veteran's discharge from service, and the Veteran's current bilateral hearing loss disability is not related to his active service.
CONCLUSION OF LAW
Bilateral hearing loss disability was not incurred in or aggravated by active service, and its incurrence or aggravation during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2014), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.
They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.
The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2014), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The record reflects that VA sent the Veteran all required notice in a February 2011 letter, prior to the September 2012 rating decision on appeal.
The record also reflects that the Veteran's service treatment records (STRs), post-service VA medical records, and available private treatment records have been obtained. Further, the Veteran was afforded a VA examination in September 2012 to determine the extent and etiology of the Veteran's hearing loss. The Board has determined that the examination report is adequate for adjudication purposes because it reflects that in addition to examining the Veteran, the examiner reviewed the Veteran's pertinent history and properly supported the opinion provided. See Barr v. Nicholson, 21 Vet. App. 303, 3012 (2007) (providing that when VA undertakes to provide a VA examination or opinion, it must ensure that the examination or opinion is adequate.)
Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Therefore, the Board is also satisfied that VA has complied with its duty to assist the Veteran.
Accordingly, the Board will address the merits of the claim.
Legal Criteria
Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.
Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests organic disease of the nervous system to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
Factual Background and Analysis
The Veteran contends that service connection is warranted for bilateral hearing loss because it is due to in-service noise exposure.
A December 1960 entrance examination indicated the Veteran's hearing acuity according to pure tone thresholds, in decibels, using American Standards Association (ASA) values was as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
X
X
15
X
35
LEFT
X
X
15
X
35
A December 1962 reenlistment examination disclosed that the Veteran's hearing acuity according to pure tone thresholds, in decibels, using ASA values was as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
15
15
X
25
LEFT
15
15
15
X
30
A December 1964 separation examination found the Veteran's hearing acuity according to pure tone thresholds, in decibels, using ASA values was as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
15
15
X
25
LEFT
15
15
15
X
25
In August 2010, the Veteran reported noticing decreased hearing while stationed in Korea after a cannon exploded and caused his ears to ring. He also stated that he damaged his ears while working as a paratrooper for eleven months without hearing protection.
In a September 2012 VA examination report, the Veteran reported working as a light weapons infantryman while on active duty with noise exposure from cannon blasts, tanks, explosions, and heavy equipment. The VA examination report found the Veteran's hearing acuity according to pure tone thresholds, in decibels, using International Standards Organization (ISO) values was as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
35
55
80
95
100
LEFT
35
50
85
95
100
The Maryland CNC speech recognition score was 56 percent in the left ear and 60 percent in the right ear. The VA audiologist diagnosed mild sloping to profound bilateral sensorineural hearing loss and opined that the Veteran's hearing loss disability was not related to military noise exposure because the Veteran's enlistment examination documented existing mild high frequency hearing loss, the reenlistment examination documented mild high frequency loss in the left ear only, and the separation examination showed no decrease in hearing sensitivity when compared to the prior examinations.
The Veteran reported that a private audiologist, Dr. W.A., linked his bilateral hearing loss to an explosion that occurred while he was serving in Korea. A November 2012 audiogram from Dr. W.A. found the Veteran had bilateral sensorineural hearing loss and tinnitus and indicated that there was a 1962 explosion in Korea with noted bleeding ears and that the Veteran could not hear and had tinnitus since.
The Veteran further contended that he did not have audiological hearing examinations when he reenlisted or separated from service and stated that the entries in his service records were erroneous.
After careful review of the record, the Board finds that service connection is not warranted for the Veteran's bilateral hearing loss disability.
The Board notes that the Veteran has a diagnosis of bilateral sensorineural hearing loss during the period of the claim; however, the Board finds that bilateral hearing loss disability was not present within one year following discharge from service. There is no medical evidence suggesting the presence of bilateral hearing loss disability within one year of the Veteran's discharge from service and although the Veteran contended he noticed a decrease in hearing during service, the decrease is not noted in the separation examination. In addition, while the Veteran contends that he did not undergo audiological evaluations during service, the Board finds his current recollections of what happened more than 40 years earlier are less probative than the contemporaneous examination reports. The medical evidence first documents evidence of bilateral hearing loss disability in 2012, more than 40 years after the Veteran's separation from active service. Therefore, service connection for bilateral hearing loss disability is not warranted on a presumptive basis.
Further, the Board concludes that the Veteran's bilateral hearing loss disability is not otherwise etiologically related to service because there is no competent and persuasive evidence linking the Veteran's hearing loss to service. Although a November 2012 private treatment record confirmed the diagnosis of bilateral hearing loss and noted a 1962 explosion in Korea, Dr. W.A. did not provide a nexus statement linking the Veteran's hearing loss to the in-service incident. Moreover, the September 2012 VA examiner opined that bilateral hearing loss was not related to active service and properly supported the opinion following an examination of the Veteran and the review of the Veteran's pertinent history. Therefore, the Board has found the examination report to be highly probative evidence against the claim and to be more persuasive than the November 2012 private treatment record.
The Board acknowledges that the Veteran may sincerely believe that his hearing loss is related to in-service noise exposure; however, he does not possess the medical expertise required to determine whether his bilateral hearing loss disability is causally related to active service. Moreover, to the extent that the Veteran believes that his hearing impairment began or permanently worsened in service, the Board has found the Veteran's current recollections to be less probative than the service examination records.
Accordingly, this claim must be denied. The Board has considered the benefit of the doubt doctrine but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim.
ORDER
Service connection for bilateral hearing loss disability is denied.
____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs